Susie Mountain

Surrogacy is an issue which attracts strong views. There has been an increase in publicity regarding surrogacy thanks to the number of celebrities (typically in the United States) choosing to conceive children through surrogacy arrangements. In the UK, couples, or individuals, may look to surrogacy as route to parenthood for a variety of reasons. Increasing awareness around surrogacy is a positive thing. However, the current law on surrogacy is not without its difficulties.

What is the current legal position?

The law governing surrogacy arrangements in the UK, although innovative and ground breaking, had its genesis at a time when the implications for all those involved may not have been fully understood.

Surrogacy arrangements in the UK must be entered into on a non-commercial basis. This is with a view to avoiding the exploitation of surrogate mothers which may be prevalent in other countries. However, this does mean that finding a willing surrogate in the UK may be more difficult than might be the case internationally. The UK has no control over surrogacy arrangements made abroad.

As the law stands, a child born through surrogacy (whether via “traditional” surrogacy, where the surrogate mother’s own egg(s) is/are used; or “gestational” surrogacy, where there is no genetic link between the surrogate and the child), is legally the child of the surrogate mother at birth. The surrogate’s spouse or civil partner (if she has one) may be the legal father, or second parent. The intended parent or parents have no legal rights in respect of the child. This can cause difficulties where the relationship between intended parents and surrogate have broken down. Although this is rare, it can have devastating consequences for all concerned. This lack of parental rights and responsibilities for the intended parents at the time of the child’s birth also prevents the intended parents from making important decisions regarding the child (e.g. medical care).

After the child’s birth the intended parent or parents must apply for a Parental Order to have the parental status transferred from the surrogate (and any spouse/civil partner of hers) to the intended parent(s). A Parental Order application is made through the court and can only be made after the child is six weeks of age (although the process itself may take several months). Although the law provides that the welfare of the child is the paramount consideration in deciding whether to grant a Parental Order, crucially, the consent of the surrogate must be provided to allow a Parental Order to be made. In the absence of such consent, the Parental Order cannot be granted. Surrogacy agreements are accordingly entirely unenforceable in the UK.

The law on surrogacy has already evolved in recent years, and unmarried/non civil partnered couples can now apply for a Parental Order if they are in an enduring family relationship; and sole parents can also apply. However, it is clear that further reform would mark a positive step forward for those considering surrogacy arrangements.

What are the recommendations?

The report recommends the creation of a new “surrogacy pathway”. The gatekeeper to the pathway would be a new Regulated Surrogacy Organisation, which would be non profit making and the function of which would be to support all parties. To use the pathway, the following criteria would need to be met:

• The surrogate would need to be 21 years of age or older;
• The intended parent(s) would need to be 18 years of age or older;
• One of the intended parents would need to have a genetic link to the child;
• Where there are two intended parents, they must be married, in a civil partnership or in an enduring family relationship; and
• At least one of the intended parents, and the surrogate would need to meet the test for having a connection to the UK

A key feature of the new pathway would be that the intended parents would be the child’s legal parents from birth. The pathway would also allow for screening and safeguarding checks. The surrogate mother would be able to withdraw her consent to the arrangement at any time up to six weeks following the child’s birth and:

• If consent is withdrawn prior to birth, the surrogate would be the legal parent at the child’s birth. The intended parent(s) would in that event require to apply for a Parental Order.
• If consent is withdrawn following birth, the intended parent(s) would be the legal parent(s) at the child’s birth. The surrogate would, however, be able to apply for a Parental Order in those circumstances.

Payments to surrogates

The issue of payments which might be made to surrogates is somewhat complex territory as things stand. Although surrogacy arrangements must have no commercial element, it is equally important that surrogates do not suffer any financial loss. To provide clarity, it is recommended that the types of payments which might be made to surrogates would include the following:

• Life insurance/critical illness cover
• The cost of screening and safeguarding assessments
• Modest gifts
• Costs associated with domestic support
• Travel/accommodation associated with the surrogacy arrangement
• The cost of a modest recuperative holiday
• Any loss of earnings
• Medical costs

Improved employment rights

It is recommended that at least one of the intended parents would be eligible for the equivalent of Maternity Allowance, as well as time off work to attend ante-natal appointments with the surrogate.

International surrogacy arrangements

Parental Orders will continue to be available for international surrogacy arrangements. It is recommended that there be improvements for the handling of visas and passport applications for such arrangements, such that applications could be made before the birth of surrogate-born children.

Surrogacy register

It is recommended that surrogate born children would have access to a Surrogacy Register from the age of 16 (in Scotland) to allow them to obtain information as to their origins. The importance for the wellbeing of children as they mature of knowing and having access to their family history is now well understood and this is reflected in the recommendations.

These are certainly some bold new steps and will bring much needed clarity and reassurance to those considering surrogacy arrangements.

Susie Mountain is a partner at Brodies LLP